Insights into Editorial: Breaking new ground
- April 29, 2019
- Posted by: InsightsIAS
- Category: EDITORIALS
Insights into Editorial: Breaking new ground
The Madras High Court announced that the term ‘bride’ as per the Hindu Marriage Act, would also include a transsexual and not just someone born as a ‘woman’.
In the judgment delivered in Arunkumar and Sreeja v. Inspector General of Registration and Others (2019), the Madras High Court has held that a properly solemnised marriage between a male and transwoman is valid under the Hindu Marriage Act, 1955, and the Registrar of Marriages is bound to register the same.
A judgment of the Madras High Court, Madurai Bench, has extended enjoyment of civil rights, especially those pertaining to marriage, to transpersons.
Solemnised Marriage: Path-breaking decision:
While this is path-breaking for much of the country, the judgment also opens doors to the larger LGBTQ community for availing civil rights including marriage, succession and inheritance.
The judgment quotes NALSA v. Union of India (2014), which held that transgender persons have the right to decide their “self-identified gender”.
Now, when this is read along with the Supreme Court’s explicit reference to the American court’s guarantee of right to marry to homosexual couples.
This shows that there cannot be a legal bar any more to extending civil rights such as marriage, succession or inheritance to LGBTQ couples who have decided to get married consensually, have married in accordance with the existing laws and are not in violation of any other laws.
The court drew inference from mythology (Mahabharata and Ramayana), traditional lore to modern neuroscience.
The Hindu Marriage Act, 1955:
The main purpose of the act was to amend and codify the law relating to marriage among Hindus and others.
Besides amending and codifying Sastrik Law, it introduced separation and divorce, which did not exist in Sastrik Law.
This enactment brought uniformity of law for all sections of Hindus. In India there are religion-specific civil codes that separately govern adherents of certain other religions.
Present case, the Madurai Bench judgment, however, breaks new ground when it comes to the interpretation of the statutory terms found in the Hindu Marriage Act, especially that of bride (pertaining to women).
It states that the expression “bride” occurring in Section 5 of the Hindu Marriage Act cannot have a static or immutable meaning.
As noted in Justice G.P. Singh’s Principles of Statutory Interpretation, the court is free to apply the current meaning of a statute to present-day conditions.
Constitutional validity of Section 377:
The present judgment is truly path-breaking for the LGBTQ community, which is denied equal protection of laws with regard to civil rights.
Section 377 of the Indian Penal Code is a section of the Indian Penal Code introduced in 1864 during the British rule of India. It makes sexual activities “against the order of nature” illegal.
On 6 September 2018, the Supreme Court of India ruled that the application of Section 377 to consensual homosexual sex between adults was unconstitutional, irrational, indefensible and manifestly arbitrary, but that Section 377 remains in force relating to sex with minors, non-consensual sexual acts.
Availing Civil Rights to LGBTQ community:
Ever since the Supreme Court of India decriminalized homosexuality by ruling out the Section 377 of the Indian Penal Code, the country has come a long way in providing justice to the LGBTQ community.
The court has also asked the state government to issue an order to put a ban on sex-reassignment surgeries on inter-sex infants and children. He also added that an intersex child is entitled to stay with the family.
According to justice, the government should also launch awareness campaigns to make parents understand that the birth of an intersex child is not something to be ashamed of.
Ordering the State to create an awareness campaign in this regard, the court said recent Tamil films like Peranbu and Super Deluxe were encouraging trends.
At the preliminary hearings before the Supreme Court in Navtej Singh Johar, the Solicitor General, representing the Government of India, sought the curtailing of the scope of the case to that of the constitutional validity of Section 377 of Indian Penal Code, 1860 alone.
The Supreme Court, consequently, did not have an opportunity to examine the bundle of rights that were to naturally arise from the striking down of Section 377.
Therefore, in this context, the present judgment is truly path-breaking for the LGBTQ community, which is denied equal protection of laws with regard to civil rights.
The decision comes as a major step towards progress for the country as one firmly believes that love comes in all shapes and sizes.
We are in hope for the other states to follow suit and wish to hear similar rulings like this in the future.